Citation Nr: 0109917
Decision Date: 04/04/01 Archive Date: 04/11/01
DOCKET NO. 00-04 753 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to waiver of recovery of an overpayment of
improved nonservice-connected disability pension benefits in
the calculated amount of $19,921.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. E. Smith, Counsel
INTRODUCTION
The veteran had active military service from January 1941 to
August 1945.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a June 1999 notice of an
administrative decision by the Committee on Waivers and
Compromises (Committee) meeting at the Winston-Salem, North
Carolina, Regional Office (RO) of the Department of Veterans
Affairs (VA), denying the veteran's request for waiver of the
recovery of an overpayment of improved disability pension
benefits in the calculated amount of $19,921.
REMAND
Review of the evidentiary record indicates that the
overpayment at issue resulted from the retroactive
termination of the veteran's disability pension benefits,
effective June 1, 1988, after it was learned by the RO that
the veteran had failed to report Social Security income
received by his spouse since May 1988.
Waiver of recovery of the overpayment of disability pension
benefits assessed against the veteran was denied by the
Committee in June 1999. In its decision, the Committee found
the veteran's waiver request was not precluded by a finding
of fraud, misrepresentation or bad faith on his part. See
38 U.S.C.A. § 5302(c) (West 1991). The Committee then
considered the elements of the standard of equity and good
conscience and concluded that it would be within equity and
good conscience to recover the assessed indebtedness. In
reaching this determination the Committee however did not
consider the veteran's financial status report which was
received by the RO in October 1999.
The subsequent December 1999 statement of the case while
providing the veteran with the provisions of 38 C.F.R.
§ 1.965, in reference to the elements of equity and good
conscience, did not discuss the standard of equity and good
conscience and appears to indicate the veteran's request for
waiver was denied by the Committee on the basis of bad faith.
Consequently, the Board finds that the veteran's claim should
be reviewed again for the purpose of clarifying the basis of
the decision on waiver. The Board notes that under the
applicable law and regulations in order to establish bad
faith there must be conduct on the part of the veteran which,
although not undertaken with actual fraudulent intent, is
undertaken with intent to seek an unfair advantage, with
knowledge of the likely consequences, and results in a loss
to the Government. 38 C.F.R. § 1.965(b). These essential
elements were not discussed in the statement of the case.
The Board finds in view of the above, that further appellate
consideration of this issue should be deferred and the case
must be REMANDED to the RO for the following actions:
1. This case should be referred to the
Committee for a further determination of
whether or not there was fraud,
misrepresentation or bad faith on the
part of the veteran in the creation of
the assessed overpayment, in accordance
with 38 U.S.C.A. § 5302(c); 38 C.F.R.
§ 1.965(b). Such determination should be
made without any reference to the
elements of the standard of equity and
good conscience. Only if it is
determined that the appellant did not
commit fraud, misrepresentation or bad
faith in the creation of the overpayment,
should consideration be given to the
veteran's request for waiver under all
elements of the standard of equity and
good conscience as set forth in 38 C.F.R.
§ 1.965(a). In this regard, the veteran
should be requested to complete an up-to-
date financial status report, in the
event that his financial situation has
changed since this report was last
submitted. A formal written record of
the Committee's decision should be
prepared and placed in the claims folder.
2. If the action above remains adverse
to the veteran, he and his representative
should be furnished with a supplemental
statement of the case in accordance with
38 U.S.C.A. § 7105 (West 1991), which
summarizes the relevant evidence, fully
cites the applicable legal provisions
pertinent to this appeal and reflects
detailed reasons and bases for the
decision reached.
When the above development has been completed, the veteran
and his representative should be afforded the opportunity to
respond thereto. Thereafter, after ensuring that all
modification and development action required by the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475 is
completed, the case should be returned to the Board for
further appellate consideration, if otherwise in order,
following appropriate appellate procedure. The purpose of
this REMAND is to accord due process of law and the Board
does not intimate any opinion either factual or legal as to
the ultimate disposition warranted in this case. By this
action, the Board intimates no opinion, legal or factual, as
to the ultimate disposition warranted.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
J. E. Day
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).